THANKS AND ACKNOWLEDGMENT
The “list of contents” given by Mr. Rajiv Rahjea, Advocate, Proprietor of M/s Capital Law Publishers, Tis Hazari Courts, Delhi; the money given as advance by him to do the legal research about said “list of contents” had only resulted in this book, without which, I might have never done research about those chapters. Rrajive@gmail.com.
His twin brother Mr. Sanjiv Raheja, Advocate, Proprietor of M/s Capital Law Infotech, Vishwas Nagar, Shahdra, Delhi; had provided me his own laptop computer with 3 softwares loaded in that computer (Legal Eagle Delhi High Court, Allahabad High Court and Criminal Judgments of all the Courts), without which help, legal research for this book might never have been possible. I am also acknowledging his permission to re-produce the copyrighted head notes of Legal Eagle Softwares, in this book. Sanjur1973@yahoo.com. Unless I will tell my thanks to both of them, this book will remain incomplete.
======= ===============
LIST OF CONTENTS AND INDEX
My knowledge gained between July 2010 to till July 2012, are given at the end of the book, due to shortage of time, I could not re-edit the book, to include them at correct places.
Due to shortage of time, I could not prepare them for now, but that also will be completed and re-submitted.
======== =========
the book commences from here:-
Introduction by the Author
1. The difficulties faced by a person who want to prepare a Pleadings to file in any Court, or a Conveyancing deed to determine rights and duties of the persons out-of-Court, whether as an Advocate, or as an “In Person”, is written by Gandhiji; regarding his State of Mind as an Advocate, at his age of 22 years, which is completely quoted from the Book: “The Law And the Lawyers”, published by Navajivan Publishing House, Ahmedabad:- At page 13: “My helplessness: It was easy to be called to the Bar but it was difficult to practice at the Bar. I had read the laws, but not learnt how to practice law. I had read with interest the Legal Maxims, but did not know how to apply them in my profession, for the benefit of one’s client. I had read all the leading cases on this maxim, but they gave me no confidence in the application of it in the practice of law. I had not even learnt how to draft a plaint, and felt completely at sea. I had serious misgivings as to whether I should be able even to earn a living by the profession”.
2. The difficulty faced to materialize this Book is also same. Simply by narrating Legal Maxims and related Case law, accompanied by a Pleading, there is no guarantee that, how anyone can draft his own pleadings. Those who start their Advocate Career from any other Advocate who have more experience, it is more easy being “Guru” will be available for clarifying the doubts. However, lateral entry Advocates do not get opportunity to get a Guru. It is known to every-body that, simply narrating the Facts, Grounds and Prayer is Pleadings. However, only while starting to work, the Difficulties narrated by Gandhi will start and the loss of self-confidence will arise. This book is written to cover this particular point of loss of confidence, to tell how to write the Facts, Grounds and Prayer.
3. The Author is a Practicing Advocate. During his Advocate practice, what are the importance instances had came to his knowledge and memory are utilised to write this book. Writing pleading and conveyancing is not an easy task. Duty of the Advocate is always confused. It is related to the honesty and bonafideness of the client. Some clients do consider the Advocate to be their best friends, while others consider the Advocates as Robbers or parasites. It is very easy to work for the 2nd category of clients, to work for them, you require no knowledge at all, being their death is not going to pain you. Whereas any mistake committed by us should not hurt the welfare of 1st category of clients. This book is meant for Beginners in the Advocate profession, and for others who want to conduct their case as “In person”, without help from any Advocate.
4. Whether making a Pleading or Conveyancing, for a client who respects and want to protect his Advocate’s welfare, the Advocate bears a tough duty. He should not leave anything “ambiguous”, means suspicious. If there are any such terms, that will result in unending litigations, and the Judges will have to examine entire facts and find out, what the Advocate failed to write in length. Normally both the parties are related and previously known to one another and the Advocate and Judiciary are outsiders. However, normally the clients are coming to us, not to get a cause of action to file a case, but to sort out their mutual disputes amicably. On the other hand, if a Stronger man will come to us with a request to prepare a foolish document/ contract/ partnership deed; to fool his Weaker relative/ friend, my principle is, even if I am sitting without work, I do not do that work, because of two reasons: (1) I cannot permit a Weak party to be fooled by a person stronger than him, and (2) Some times, the Weaker may be pretending to be a Weaker, only because of some “previous debt” or Emotional Black-mail, and he may be stronger than the strong, in that case, the said Weaker Party will file Bar Council Complaint. I used the same principles while writing this book also.
5. I had made best efforts to prepare best book. However, all the Law Journals published in India is not available for my reading. I cannot understand the English language written in Foreign law books. Thus if the Readers can make corrections to my mistakes, or give me Good citations from which I can extract Law Points, I will be very thankfull. This will be done to ensure that, “pleadings and conveyancing” are two documents which ab-initio decides the Rights and Duties of parties inter-se and I do not want any mistake in this book.
6. Another offer I make to help the person who purchase this book is, to inform me his E-mail address, along with Photocopy of the Receipt/ Cash Bill of the shop. In return, what are the corrections will be made in this book, relying upon further Judicial pronouncements or relying upon the suggestions received by me in the previous para, will be communicated, without any delay. Such purchasers will have no need to buy the next revised edition of this book, being all the up-dations in each of the chapters will be separately communicated to them, which they can down-load, take print and paste at appropriate places.
Thanking You. Yours truly.
G.
Ramanathan Iyer, Advocate,
Enrolment Number Delhi-1282/2000.
======= ======== ============
A very imp point about writing Survey numbers in Conveyance documents is written not in the beginning, but at a later part, which is copy-pasted here because of it’s importance:
Deeds and Agreements involving Land:-
The Publisher had given a few Conveyancing Deeds to the Author to correct them and approve for Printing in the Book. While perusing them, this Lecture/ Note are found to be required to be written.
KHASRA NUMBER or SURVEY NUMBER:- Government have Revenue Officials, for each place, which also have various Hierarchy like Police Stations and Post Offices; and at some States like Uttarakhand or certain parts of Uttar Pradesh, the Revenue Officials work as Police Officials also. Their duty is to measure entire land within their jurisdiction and maintain Site Plan or Maps for entire land at their Area. After such measuring, depending upon the directions of State Government of Government of India, each land is allotted a number, which is called “Khasra Number or Survey Number”. In this, the present Owner’s name also will be written.
Why it is legislated that, transfer of Immovable Property is to be Registered is, from the Land Registration Sub-Registrar’s office, the data will go to Revenue Official, and he will write the details of transfer in his Records. It is called Mutation.
In various States, under criminal law, not only Policeman, but also the Revenue Official should visit each place of crime and prepare his own Site Plan. It will ensure that, rightful owner of the said land can be charged for crime or negligence.
In the transfer of Immovable properties, due to this reason, not only Door Number is necessary; but also “Khasra Number or Survey Number” is necessary. In a case handled by the Author, under the Punjab Village Common Lands Act (PVCL Act), the Hon’ble HC of Punjab and Haryana asked the Sale Deed Holder/ Appellant’s Advocate to find out “Khasra Number or Survey Number” from the Exihibit, when said details could not be found, the Appeal was dismissed for that reason only. Reason is, unless said details is there, the Revenue Officials cannot do Mutation, to write Land Holder’s name in Government Record, and he deserves no relief.
This Lecture/ Note is written to ensure that, even when due to oversight the Author himself forgot to write “Khasra Number or Survey Number” at any place, the Students/ Reader of this Book do not forget to write that – Author.
======== ================
CHAPTER-1 PLEADINGS GENERALLY
There is only one technique of writing pleadings. That is given as follows. This guide-line is same for Plaint, Written Statement, Counter-claim, criminal complaint, Written Statement of the accused in a criminal case, Appeal, Revision, Writ peitions, SLPs before Supreme Court: you take any name or any Court, it is the only format:-
1. Addressed to whom:- It can be given to a Court, or to any Government Offices, like Police Station, or to the Opposite Party. Generally while addressing a Court, at the top, it will be written in Capital letters:- “In the Hon'ble Court of....., at.....”. However, it is not compulsory. It can be very well commenced with the words: “To, The Court of....., Address...”. Thus, whether to file an Original Petition, Complaint, First Appeal, Second Appeal, Special Leave Petition before Supreme Court, or Writ Petitions, the Format of Ordinary Letters is sufficient.
2. How can be filed:- Many decades ago, unless an aggrieved person or Appellant will appoint an Advocate, and every time personally appear in the Court, no Judicial proceedings were permissible. Even now the same rules are existing in the Books, but there is Legal Aid Committees till grass root level. Advocates are appointed in the Panel of said legal aid Comittees. The letters written to a Court are “marked” to those Advocates according to their roster, and at first they should give Legal Opinion, and regular petition should be filed by them and appeared by them. Through letters, the Affidavits will be send to the person who wrote the letters to the Court or Judges, which should be signed and returned back. How the Government's Advocates will get money from the Government, in the same manner the Accused/ Plaintiffs/ Appellants in Civil Cases's Advocates also will get Fees from the Legal Aid Committees. Legal Aid Committees get Grants from Government. To repeat, simple letter to any Magistrates, Civil Judge Courts; and up to Supreme Court are entertained as Plaints, Petitions, Appeals, Writ Petitions etc.
3. Format of Petition/ Appeal/ Revision/ Plaint etc:- The Judicial Systems had thousands of loop-holes to cause delay. Many of them are closed/ pegged in the years 1999 and 2002 through Code of Civil Procedure, 1908 Amendments. Thus, since 2002, the law is equal to common sense to control delay. Previously even in-experianced persons were able to delay justice to opposite party. Now only Experienced persons, only with previous acquaintenance of Judicial Officers, can cause delay to do injustice to the opposite party.
3.1. Following are the Formats of Original Petition/ Plaint/ Suit/ Complaint/ Writ Petition etc:-
3.1.1. Name and addresses of parties. In this Pleading, complete details and addresses of parties are given. Normally it should be filed in Original + Copy, or two originals; in that one Original will be with the File for reading of Judges and the other copy will be send to Certified Copying Section, for identifying that, from which file the Documents came to the Certified Copying agency.
3.1.2. There is a tendency to start “Plaint” immediately after writing details of the parties. In today's world of Photocopying, by the Certified copy agency, it is not good to start plaint contents after the Memo of parties. Reason is, the Certified Copying Employees will fold the first page at that place to copy only details of parties, and due to repeated folding, the first page will be torn off.
3.1.3. If separate memo of parties is filed, the first two paras of the Original petition will be written as follows:-
(Para no-1). The Plaintiff (petitioner/ appellant etc) is (write complete name and address), who had filed this petition/ appeal etc... give more details about citizenship etc.
(Para no-2). The complete address of Defendants/ Respondents are given in the Memo of parties, which are not being repeated for the sake of brevity.
(Para no-3). The Defendants are related to the plaintiff in this Suit/ Plaint/ Petition/ Appeal are as follows:- Write here the details of each defendants.
4. While writing about Defendants/ Respondents, there is some new information, which is not written in the Statutes, that is bound to be written in the book about Pleadings. Normally, those who are claiming relief from opposite party, while filing a Plaint is Plaintiff. Unless all the parties join together, the Plaint should not be filed. If filed, that will be dismissed. Thus, people with conflicting interests are Plaintiffs and Defendants. However, some persons with conflicting interest with the defendants, will refuse to join with the Plaintiffs. Reason can be already accepted bribe from the Defendants, or Social embarassment, or became a Sanyasi etc. Under such circumstances, they will have to be impleaded as “Proforma Defendant/ respondent”. Thus now you have two type of Defendants: Proforma and contesting.
4.1. Under such circumstances, the Plaintiff need not file Complete Court Fees for the Cause of Action. He need to file only for his own share: That is, if there is cause of action having value of Rs.ten thousands, and there are ten persons with equal share, who can be plaintiffs; and 9 persons had joined with the defendant, they cannot fool the single person. The only thing is, he will have to pay one-tenth of the original Court fees and make his 9 traitors the “proforma defendants”, along with contesting defendants.
4.2. If the Limitation Act will permit, any of those 9 “Proforma defendants” also can pay requisite Court Fees in their Written Statement, and pray for similar “Decree”. There are cases, in which Plaintiff and one of the Defendant will engage one Advocate.
4.3. When the Plaint or Appeal is to be filed:- This point have nothing to do with “Pleadings”, but to know the Law, this para is to be written. Normally, once a Plaint is filed, the Defendants can file “Counter-claim”, and the Proforma Defendants can file requisite Court fees and pray for a Decree in their favour also. However, the question is, who will first go to the Court. Under such circumstances, the person who is Clever, will file his Plaint or Appeal on the last day of the Limitation, so that other party's rights will be lapsed.
4.4. PLEADINGS important ADVICE:- It should be told immediately after the previous advice. The Section 18 of the Limitation Act, 1963; states that, if there is Acknowledgement in writing, the Limitation period will be extended till that date. Thus, if a Client want to file his Plaint/ Appeal, on the last date; the person who is drafting the Plaint/ Appeal should read a lot of Case law under this Section, prior to drafting, so that, no averments/ allegations should be made in the body of the Pleading which will look like an Acknowledgement.
5. Now the details of “Defendants” is written. After that the next point to write is, “FACTS”. In that, there can be various paragraphs and sub-paragraphs. Various Complete Pleadings, which are not skeleton, are given in this Book, from which a General Idea can be obtained about how to write Facts. It is same for Plaint and Written Statement etc. While writing Facts, please remember the following:-
5.1. Hear-say is not an evidence: Kindly read Section 60 of the Indian Evidence Act, 1872. While searching in a Software in a Legal programme, it may be written as “hearsay” or “hear-say”. Thus, never rely on “hear-say” witnesses to prove your case. As an Illustration, Mr.A files a Suit saying: “I had been told by persons who are unknown to me that, Ministry of xyz of the Government of India had created loss to me”, in a Civil Suit, the Notice will be Issued, but even if Defendant will not defend, the Plaint will be dismissed after recording evidence. If the same allegation will be made in a Writ Petition, the High Court/ Supreme Court will dismiss that in limine. The present trend is to impose heavy costs, whether the defendant is Government or private party. Thus, while writing FACTS, please be sure, not to rely on any hear-say allegations.
5.1.1. There is an exception to above Law. That is, Circumstantial evidence. If there is strong chain of circumstantial evidence, even without an eye-witness or original document, the cases can be won. Rules about circumstantial evidence should be read from other books and in a Pleadings book, that need not be written.
5.1.2. It is the Quality of evidence which should be considered and not quantity. That should be read from the Section 134 of the Indian Evidence Act, 1872. It can also be studied from the “heading” named “appreciation of evidence” from the Legal Judgements Digests.
5.2. With the help of all these details, now FACTS are to be written. After writing Facts, please read that many times, to ensure correct mention of following details:- (i) Each witness's name should be correctly written about each Facts. It cannot be written in one-stretch. During each revision of the pleadings, it will be possible to write the correct name of the witness who will testify the alleged Facts. (ii) Each documents which had been prepared in the course of happening of the Facts should be written at the correct place. (iii) Please remember that, unless it is written in the body of the pleadings, no evidence can be led. And no document can be produced. More about Documentary evidence is discussed in a separate chapter of this book.
6. Preparation of List of Witnesses and List of Documents:- during revising the written Facts, these Lists should be prepared. It will help in inclusion of each persons and documents.
7. Code of Civil Procedure, 1908 Order 6, Rule 2; effect of:- Now a Legal Provision will stand up in front of you. That is: “Pleading to state material facts and not evidence”. What is the meaning of this Law and incorporation of names of witnesses and documents in the body of the Facts. The Answer is very simple. When other provisions of Code of Civil Procedure, 1908 was amended during 1999 and 2002, the Legislature forgot to explain this Rule. Examples are given as follows:- 'Government vehicle hit my Cycle' alone is not sufficient for winning the suit, being who will prove this fact is a Blank Cheque kept with the Plaintiff, which the Defendant will not permit. What should be written is 'In the presence of Witnesses...., the Government vehicle hit my Cycle'; OR 'Government vehicle hit my Cycle, which can be proved through the circumstantial evidence as follows...., for which ... number of photographs were taken'.
7.1. Now the difference between Civil Suit and Writ Petition can be narrated in this point as follows. In the Writ Petition, the following should be written: 'In the presence of Witnesses...., the Government vehicle hit my Cycle, Statements/ Affidavits of those witnesses are enclosed herewith and marked as Annexure P-1 to ...'; OR 'Government vehicle hit my Cycle, which can be proved through the circumstantial evidence as follows...., for which ... number of photographs were taken, those photographs are enclosed herewith and marked as Annexure P-1 to ...'. If such witnesses are not willing to file any Affidavits, they should be made Respondents in the Writ petition, and that should be written in the above para. In a Civil Suit, separate Summons for Witnesses are issued, thus no need to make them Defendants. Here the word “evidence” means, it is the duty of the Civil or Criminal Court, exercising Original Jurisdiction, to decide about admissibility of each evidence, and identify them accordingly. However, in the Writ Courts, there is no procedure to record evidence, thus they should be identified by the Petitioner/ respondent himself. In both the courts, whether quality of the evidence is sufficient to prove the alleged fact is the decision of the Judge and Judicial opinion subject to variation.
7.2. The impact of Order 6, Rule 2 Code of Civil Procedure, 1908 is very simple. Do not forgot to write every Witness or Documents' name. Do not forget to give a copy of those documents also to the Defendants. However, whether that is sufficient to win your case can be decided only when recording of evidence in the case. In that case, the drafting of Writ Petitions or Appeals and Plaint/Suit/ criminal Complaint is one and same.
8. GROUNDS:- After writing the FACTS, the next point to consider is, whether any Cause of Action arise against the Defendants. To know more about this, please read from Order 7, Rule 11 of the Code of Civil Procedure, 1908. In that, 6 reasons are given about why a Plaint can be dismissed without even filing Written Statement. Even after filing WS, an Application can be moved under this Rule to get the Plaint dismissed without oral and documentary evidence. While filing Appeals and Writ Petitions, it is very easy, because “Grounds” can be at the option of the Appellant/ Petitioner. However, in case of a Plaint/ Suit/ criminal complaint, after writing FACTS, a few essential averments (which will be explained in forthcoming paras) to be written, and thereafter Prayer.
8.1. What is a “Ground” is explained quoting from the following words of a Reputed Book:- “the concept of cause of action has a legal aspect also. A person suing in Court may be able to establish all facts he has in mind to seek relief. But if those facts themselves do not give rise to a legal right, then even on the established facts, no ground for relief arises. This situation is also some times described as the plaintiff having 'no cause of action'... Here, the suit will fail, not because the law does not recognize a right in favour of the plaintiff even if the facts are proved. There must be a legally recognised right, derived from some source or other, which the plaintiff must establish before he can succeed in Court”. Quoted from the Question 9 of the Book: Civil Court Procedure in India”, written by PD Mathew and PM Bakshi, published by Indian Social Institute, 10, Institutional Area, Lodhi Road, New Delhi-3.
8.2. The same authors had written book about Criminal Procedure also, published by same publisher, in that book the Author could not find the words “cause of action” it means, the same definition applies to criminal proceedings also.
8.3. Few of the Specimen of “Grounds” are written at the separate chapter of this book.
8.4. Whether you are filing Writ petition or Plaint, it will be appropriate to write the “Grounds” immediately after preparing the Facts, and preserve separately in the File. Now you know, whether you are likely to win.
9. CATHARSIS (This term is not meant to be written in Pleadings): To repeat, now you have all your witnesses and evidence in your memory and written paper, and also your legal rights in the form of Cause of action or Grounds. If you are not having a good case, please stop the PLEADINGS of this Case. In case of an Advocate, it is the time to give CONSULTATION to his client, but in India, the Private Clients do not give consultation fees, thus no such things are given. For the Plaintiffs and Defendants appearing in person, there is benefit of doing this work, up to this stage, being that will be a Catharsis Psychological exercise, to utilise the extra energy built up in your body, due to the “fight or flight” hormones.
9.1. NOT FINDING GROUNDS TO GET RELIEF; need not be completely discouraged to file a Litigation. According to Gandhiji, it is good to take a Risk, even in the absence of Grounds to get relief. At his above quoted book, page 45, the following may be read:- “Preparation for the case. Para 6. I recalled late Mr. Pincutt’s advice – facts are three-fourths of the law. At a later date it was amply borne out by that famous barrister of South Africa, the late Mr. Leonard. In a certain case in my charge I saw that, though justice was on the side of my client, the law seemed to be against him. In despair I approached Mr. Leonard for help. He also felt that the facts of the case were very strong. He exclaimed, Gandhi, I have learnt one thing, and it is this, that if we take care of the facts of a case, the law will take care of itself”. “Facts means truth, and once we adhere to truth, the law comes to our aid naturally”.
9.2. Writing up to this much, even if there is Grounds, may some times persuade, not to file any case. That is also Psychology. In India, the present trend, after breaking up of “Joint Families” is of “Emotional Black Mail”. In the internet, there is a definition given to this word, which is the name of a book itself. “when the people in your life use fear, obligation and guilt to manipulate you”. Thoroughly study the Pleadings till now, to find out, whether any of the Witness can become an Emotional Blackmailer and what is the total loss, if he can be neglected. To quote from the para 82 of the K.M.Nanavati Versus State of Maharashtra, 1962